H315384

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H315384 April 12, 2021 OT:RR:CTF:FTM H315384 MJD CATEGORY: Classification; Origin TARIFF NO.: 1902.30.00 Ms. Sheri G. Lawson Willson International Inc. 160 Wales Avenue, Suite 100 Tonawanda, New York 14150-2508 RE: Tariff Classification of Frozen Roasted Vegetable Primavera Meal Kit; USMCA; Country of Origin Marking Dear Ms. Lawson, This is in response to your correspondence, dated October 20, 2020, in which you requested a binding ruling, on behalf of Premier Marine USA Inc., (“Premier Marine”), concerning the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”), eligibility for preferential tariff treatment under the United States-Mexico-Canada Agreement (“USMCA”), and country of origin for marking purposes of a frozen roasted vegetable primavera meal kit. Your request was forwarded to this office from the National Commodity Specialist Division for review. Our ruling is set forth below. FACTS: The merchandise is a frozen roasted vegetable primavera meal kit with three pouches. One marinara sauce pouch, one gluten free cooked pasta pouch, and one pouch of primavera vegetable blend of roasted red pepper, zucchini, and carrot. The prepackaged marinara sauce pouch, prepackaged pasta pouch, and prepackaged primavera vegetable blend pouch are all USMCA originating goods. These pouches are received at the facility in Canada, where each pouch is placed in a master pouch, and packaged in a master carton for shipment to the United States. All of the ingredients in the pasta meal kit are partially cooked or cooked and require further cooking by the consumer prior to consumption. Below is a list of the ingredients, as well as the country of origin, the percentage, and classification of each ingredient in the frozen roasted vegetable primavera meal kit: Ingredients: Origin: Percentage of final product: HTSUS:  Marinara sauce Canada 39.70% 2103.20.40  Gluten free penne pasta, cooked Canada 32.50% 1902.30.00  Primavera vegetable blend Canada 27.80% 2004.90.85   The directions for the frozen roasted vegetable primavera meal kit instruct the user to thaw the sauce pouch under water for 5 to 10 minutes, add the thawed sauce to a skillet, and combine with the vegetables and pasta. ISSUES: What is the tariff classification of the pasta meal kit? Whether the pasta meal kit imported into the United States from Canada is eligible for preferential tariff treatment under the USMCA? What is the country of origin of the pasta meal kit for marking purposes? LAW AND ANALYSIS: Tariff Classification Classification of goods under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level. GRI 3 provides, in pertinent part, the following: When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: The heading which provides the most specific description shall be preferred to headings providing a more general description.... Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character…. When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. The 2021 HTSUS provisions under consideration are as follows: 1902: Pasta, whether or not cooked or stuffed (with meat or other substances) or otherwise prepared, such as spaghetti, macaroni, noodles, lasagna, gnocchi, ravioli, cannelloni; couscous, whether or not prepared: Uncooked pasta, not stuffed or otherwise prepared: 1902.19: Other: 1902.19.4000: Other, including pasta packaged with sauce preparations. . . 1902.30.00: Other pasta. . . Other: 1902.30.0040: Frozen. . . * * * * * In understanding the language of the HTSUS, the Explanatory Notes (“EN”) of the Harmonized Commodity Description and Coding System may be utilized. The EN, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989). The EN to GRI 3(b) state, in pertinent part: This second method relates only to: Mixtures. Composite goods consisting of different materials. Composite goods consisting of different components. Goods put up in sets for retail sales. It applies only if Rule 3(a) fails. In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods. [. . .] For the purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which: consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule; consist of products or articles put up together to meet a particular need or carry out a specific activity; and are put up in a manner suitable for sale directly to end users without repacking (e.g., in boxes or cases or on boards). “Retail sale” does not include sales of products which are intended to be re-sold after further manufacture, preparation, repacking or incorporation with or into other goods. The term “goods put up in sets for retail sale” therefore only covers sets consisting of goods which are intended to be sold to the end user where the individual goods are intended to be used together. For example, different foodstuffs intended to be used together in the preparation of a ready-to-eat dish or meal, packaged together and intended for consumption by the purchaser would be a “set put up for retail sale”. The EN to GRI 3(b) further provide the following example of a set that can be classified by reference to GRI 3(b): [. . .] Sets, the components of which are intended to be used together in the preparation of a spaghetti meal, consisting of a packet of uncooked spaghetti (heading 19.02), a sachet of grated cheese (heading 04.06) and a small tin of tomato sauce (heading 21.03), put up in a carton: Classification in heading 19.02. * * * The frozen roasted vegetable primavera meal kit is a food preparation that is a set per GRI 3(b). According to the EN to GRI 3(b) sets have three characteristics. First, a set “consist of at least two different articles which are, prima facie, classifiable in different headings.” Second, a set consist of “products or articles put up together to meet a particular need or carry out a specific activity.” Third, a set is “put up in a manner suitable for sale directly to end users without repacking.” In the instant case, the pasta meal kit consists of at least two articles, a marina sauce pouch, a gluten free cooked penne pasta pouch, 

Tariff ClassificationClassification of goods under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level. GRI 3 provides, in pertinent part, the following: When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: The heading which provides the most specific description shall be preferred to headings providing a more general description.... Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character….When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. The 2021 HTSUS provisions under consideration are as follows:1902: Pasta, whether or not cooked or stuffed (with meat or other substances) or otherwise prepared, such as spaghetti, macaroni, noodles, lasagna, gnocchi, ravioli, cannelloni; couscous, whether or not prepared: Uncooked pasta, not stuffed or otherwise prepared: 1902.19: Other: 1902.19.4000: Other, including pasta packaged with sauce preparations. . . 1902.30.00: Other pasta. . . Other: 1902.30.0040: Frozen. . .* * * * * In understanding the language of the HTSUS,